Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 84 CR 6448. The Honorable Lawrence Edward Flood Judge, presiding.
Where defendant was convicted of three charges of murder, including intentional murder and felony murder, and a charge of attempted armed robbery and the mittimus stated that defendant was convicted and sentenced for intentional murder and attempted armed robbery, but the report of proceedings showed that the trial judge incorrectly identified felony murder as the murder charge on which defendant was sentenced and into which the other murder charges merged, the law on multiple murder convictions was applied and defendant was deemed to have been convicted and sentenced of the most serious murder charge, intentional murder, and based on that ruling, defendant's claim in his petition under section 2-1401 of the Code of Civil Procedure that his sentence violated the rule against double jeopardy and was void because attempted armed robbery was a lesser included offense of felony murder and could not stand was rejected on the ground that the felony murder charge merged into the intentional murder charge and he was never sentenced for felony murder.
For Plaintiffs-Appellee: Alan J. Spellberg, Matthew Connors, Sari London, Office of the State's Attorney, County of Cook, Chicago, IL.
For Defendant-Appellant: Linda Olthoff, Office of the State Appellate Defender, Chicago, IL.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Pucinski and Mason concurred in the judgment and opinion.
HYMAN, PRESIDING JUSTICE.
[¶1] Defendant, Robert Bishop, seeks to vacate his 1986 conviction and sentence for
attempted armed robbery as void on the ground of double jeopardy. He contends that attempted armed robbery also served as the predicate offense for his felony murder conviction and thus cannot stand. His appeal arises from the circuit court's dismissal of his pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). We find that Bishop was not convicted of felony murder but, rather, intentional murder, and because attempted armed robbery is not a predicate offense, the trial court's conviction and sentence on both charges did not constitute a double jeopardy violation. This being the case, the statute of limitations in section 2-1401 had run, and his petition was untimely.
[¶3] On March 20, 1985, Bishop pled guilty to murder and attempted armed robbery for the May 30, 1984 shooting death of Oralia Velasquez. Bishop was ordered to serve an extended-term sentence of 80 years' imprisonment for murder and a consecutive sentence of 15 years for attempted armed robbery. Bishop appealed, claiming ineffective assistance of trial counsel and trial court error in sentencing him to 95 years in prison. The appellate court affirmed both the conviction and the sentence. People v. Bishop, 179 Ill.App.3d 99, 534 N.E.2d 401, 128 Ill.Dec. 219 (1989). On December 27, 1991, Bishop filed a pro se postconviction petition claiming ineffective assistance of counsel and an excessive sentence. The trial court dismissed the petition and the appellate court affirmed. People v. Bishop, No. 1-92-1534 (1994) (unpublished order under Supreme Court Rule 23). In December 2000, Bishop filed a successive postconviction petition alleging his sentences violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The circuit court dismissed the petition after second-stage arguments, and the appellate court again affirmed. People v. Bishop,
No. 1-03-2255 (2004) (unpublished order under Supreme Court Rule 23).
[¶4] On July 11, 2011, Bishop filed a pro se petition for relief from judgment under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2010)). As grounds for relief, Bishop alleged: (i) his extended-term sentences are unconstitutional; (ii) his convictions violate the one-act, one-crime rule and subject him to double jeopardy; and (iii) the trial court lacks subject matter jurisdiction. The circuit court dismissed the petition in a written order on October 13, 2011. The court found Bishop did not rely on any newly discovered evidence or other material outside the record that would form the basis of a section 2-1401 petition. The court also found that (i) res judicata barred Bishop's claims regarding his extended-term sentence since they were raised in an earlier postconviction petition and (ii) waiver barred his other claims because they were not raised on direct appeal. The trial court determined that Bishop's convictions for murder and attempted robbery were separate acts and therefore did not implicate the one-act, one-crime rule or subject him to double jeopardy. Lastly, the court dismissed ...